Attorney General Edwin Meese on Marriage and the Courts

Forty-one states continue to affirm that marriage exists to bring a man and a woman together as husband and wife to be father and mother to any children their union produces.

In California, citizens voted directly to retain this understanding of marriage (after an activist court created a right to same-sex marriage) when they passed Proposition 8. In the amicus brief submitted to the Supreme Court by the Center for Constitutional Jurisprudence, former Attorney General Edwin Meese and constitutional law scholar John C. Eastman defend the constitutionality of Prop 8. (Read Prof. Eastman’s Heritage Legal Memo on marriage here.)

The current legal challenges to Prop 8 undermine citizens’ democratic authority protected by the California Constitution and years of judicial precedence. Meese and Eastman explain the importance of the initiative process in California to ensuring a responsive government:

The California Supreme Court has described the initiative power in California as central to ensuring that the government is responsive to its citizens, and as “one of the most precious rights of [California’s] democratic process.” Initiatives in California are designed to circumvent unresponsive government officials who wield the power to create law.

Citizens have good reasons for wanting the government to get marriage policy right. Meese and Eastman explain that “marriage is and always has been about much more than the self-fulfillment of adult relationships, as history, common sense, legal precedent, and the trial record in this case itself demonstrate.” They go on to explain that “the institution of marriage is the principle manner in which society structures the critically important function of procreation and the rearing of children.”

Marriage is based on the anthropological truth that men and women are different and complementary, on the biological fact that reproduction depends on a man and a woman, and on the social reality that children need a mother and a father.

To charges that marriage laws violate legal guarantees of equal protection, Meese and Eastman argue that same-sex and opposite-sex relationships are not similarly situated:

Given the near-universal view, across different societies and different times, that a principal, if not the principal, purpose of marriage is the channeling of the unique procreative abilities of opposite-sex relationships into a societally beneficial institution, it is clear that same-sex and opposite-sex couples are not similarly situated with respect to that fundamental purpose.

Meese and Eastman argue that authority for marriage policy is reserved to the people and their elected representatives:

At bottom, both constitutional questions turn on whether the Constitution deprives the people of the authority to make basic policy judgments about the definition and purpose of an institution as important to civil society as marriage. The decisions by the courts below negating the policy judgment made by the citizens of California should be reversed.

Meese and Eastman conclude by arguing that redefining marriage poses a direct threat to the institution of marriage and to civil society as a whole. It is of the utmost importance that policy decisions about marriage be placed in the hands of the people. Meese and Eastman urge that the Supreme Court respect the constitutional authority of the American people to reaffirm marriage between a man and a woman as the most important institution to maintaining a flourishing civil society.